Title Issues

Loan modification agreements unenforceable unless in writing

An appellate court in California has held that the state's statute of frauds require loan modification agreements to be in writing to be enforceable. Reeder v. Specialized Loan Serv., LLC, 2020 WL 4345001 (Cal. Ct. App. 2020). This is an expected application of the statute of frauds but it does not mean that some courts, in other factual settings, might make exceptions if the... Read more about Loan modification agreements unenforceable unless in writing

Marketable title act extinguishes easement by necessity

In a surprising decision, the Vermont Supreme Court held that an easement by necessity must be recorded or it will be lost by operation of the state’s marketable title act. Gray v. Treder, 2018 VT 137, 204 A.3d 1117 (Vt. 2018). The facts of the case were unusual, however, because the easement in this case was not clearly visible by physical evidence of its use. That will...

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Access easement found even though not noted on certificate of title to registered land

Massachusetts courts have several times ruled that access easements may be recognized even though language creating an express easement may be missing or ambiguous in the deeds to the servient estate. Hickey v. Pathways Ass'n, 37 N.E.3d 1003 (Mass. 2015) (access easement recognized over registered land even though it is not in the...

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Forged deed is void

Affirming a longstanding rule of law, the Massachusetts Land Court ruled that a forged deed has no effect. McNeff v. Cerretani, 2018 WL 4370147 (Mass. Land Ct. 2018).

City has no sovereign immunity from suit by its tenants when it leases land in a "proprietary capacity"

Although cities enjoy sovereign immunity from suit when they act in a sovereign capacity, they can be sued by tenants of land they have leased when they act in a “proprietary” capacity. Wasson Interests, Ltd. V. City of Jacksonville, 2018 Tex. LEXIS 999 (Tex. 2018). Cities act in a governmental capacity (and are immune from suit) when...

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Adverse possessor must identify and provide evidence of the boundaries of the land that is being adversely possessed

An owner cannot claim part of the neighbor’s land by adverse possession without clear evidence of where the border is. In Coscina v. DiPetrillo, 186 A.3d 590 (R.I. 2018), the adverse possessor claimed occupation of parts of her neighbor’s land but court documents repeatedly changed the location of the claimed line between the properties. Not only must the adverse possessor establish where the line is that encompasses the property acquired by adverse possession but must show sufficient evidence to... Read more about Adverse possessor must identify and provide evidence of the boundaries of the land that is being adversely possessed

Possibility of reverter or right of entry cut off after 30 years

Massachusetts law sets a thirty year limit to possibilities of reverter following a fee simple determinable or rights of entry following a free simple subject to condition subsequent. Mass. Gen. Laws ch. 184A, §7. This contrasts with the 90 year limit for executory interests. Mass. Gen. Laws ch. 190B, § 2-901. The 30 year limitation was recently applied in ... Read more about Possibility of reverter or right of entry cut off after 30 years